Banks et al v. Citimortgage, Inc. et al

Filing 24

MEMORANDUM AND ORDER - CitiMortgage's Motion to Dismiss (filing no. 21 ) is granted. Plaintiffs' Complaint is dismissed without prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DENNIS A. BANKS, and JANET M. )
BANKS,
)
)
Plaintiffs,
)
)
v.
)
)
CITIMORTGAGE, INC., and
)
MORTGAGE ELECTRONIC
)
REGISTRATION SYSTEMS,
)
)
Defendants.
)

4:11CV3203

MEMORANDUM
AND ORDER

This matter is before the court on a Motion to Dismiss filed by Defendant
CitiMortgage, Inc. (“CitiMortgage”).

(Filing No. 21.)

As set forth below,

CitiMortgage’s Motion to Dismiss is granted.
I. BACKGROUND
Plaintiffs filed their Complaint in this matter on November 17, 2011, against
CitiMortgage and Mortgage Electronic Registration Systems (“MERS”). (Filing No.
1 at CM/ECF p. 1.) In their Complaint, Plaintiffs state that they “became delinquent
on their home loan” on July 14, 2011. (Id. at CM/ECF p. 3.) On August 1, 2011,
Plaintiffs received a notice of foreclosure from CitiMortgage’s representatives. (Id.)
Liberally construed, Plaintiffs seek to prevent CitiMortgage from foreclosing on their
home because CitiMortgage “lacks standing to enforce the obligation alleged due on
the note or [to] execute foreclosure proceedings against Plaintiffs.” (Id. at CM/ECF
p. 4.)
In addition to their Complaint, Plaintiffs filed a Motion for Temporary
Restraining Order, which the court denied on November 30, 2011. (Filing Nos. 2 and
7.) In doing so, the court informed Plaintiffs that it was “mindful of its obligation to

promote comity between state and federal judicial bodies” and that it would “abstain
from exercising jurisdiction in cases where equitable relief would interfere with
pending state proceedings.” (Filing No. 7 at CM/ECF p. 2.) The court further stated
that “[a]lthough Defendants have not yet been served with summons or filed answers,
it is likely that the court will dismiss this matter in accordance with Younger
principles.” (Id.)
Summons were returned executed upon CitiMortgage and MERS on May 31,
2012, and June 1, 2012, respectively. (Filing Nos. 14 and 15.) On July 16, 2012,
CitiMortgage filed a Motion to Dismiss along with a Brief and Index of Evidence in
Support. (Filing Nos. 21, 22, and 23.) Plaintiffs did not respond. (See Docket Sheet.)
II. ANALYSIS
A.

Motion to Dismiss Standard
A pro se plaintiff must set forth enough factual allegations to “nudge[] their

claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (2009) (“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient to
state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However,
a pro se plaintiff’s allegations must be construed liberally. Burke v. North Dakota
Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).

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B.

CitiMortgage’s Motion to Dismiss
CitiMortgage argues, among other things, that Plaintiffs’ Complaint should be

dismissed in accordance with the “Younger Abstention Doctrine.” (Filing No. 22 at
CM/ECF p. 7.) The court agrees.
To promote comity between state and federal judicial bodies, “federal courts
should abstain from exercising jurisdiction in cases where equitable relief would
interfere with pending state proceedings.” Aaron v. Target Corp., 357 F.3d 768, 774
(8th Cir. 2004). Courts use the doctrine developed in Younger v. Harris to carry out
this policy. 401 U.S. 37 (1971). Under Younger, a federal court should abstain from
jurisdiction “‘when (1) there is an ongoing state judicial proceeding which (2)
implicates important state interests, and when (3) that proceeding affords an adequate
opportunity to raise the federal questions presented.’” Norwood v. Dickey, 409 F.3d
901, 903 (8th Cir. 2005) (quoting Fuller v. Ulland, 76 F.3d 957, 959 (8th Cir.1996);
see also Gray v. Pagano, 287 F. App’x 155, 157-58 (3d Cir. 2008) (affirming district
court’s abstention under Younger where state-court foreclosure action was pending
and “[a]ny relief that could be granted by the district court would directly impact
Pennsylvania’s interest in protecting the authority of its judicial system”); Doscher v.
Menifee Circuit Court, 75 F. App’x 996, 997 (6th Cir. 2003) (affirming district court’s
abstention because all three Younger requirements were met).
The record before the court shows that CitiMortgage has initiated foreclosure
proceedings against Plaintiffs in the District Court of Lancaster County, Nebraska.

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(Filing Nos. 1 and 23-7.)1 This state-court action is a parallel, ongoing proceeding 2
which implicates important state interests. In addition, Plaintiffs have not alleged, nor
demonstrated, that the ongoing state-court foreclosure proceedings will not provide
them with the opportunity to raise the claims and arguments raised in their Complaint.
Plouffe v. Ligon, No. 08-3996, 2010 WL 2178863, at *2 (8th Cir. June 2, 2010)
(applying Younger and finding abstention warranted where the plaintiff failed to show
that the state court proceedings did “not afford him an adequate opportunity to raise
his constitutional claims”). Accordingly, the court will abstain from exercising
jurisdiction over Plaintiffs’ claims.

However, the court will dismiss Plaintiffs’

Complaint without prejudice to reassertion in state court.
IT IS THEREFORE ORDERED that:
1.

CitiMortgage’s Motion to Dismiss (filing no. 21) is granted.

2.

Plaintiffs’ Complaint is dismissed without prejudice.

1

CitiMortgage has filed a copy of their state-court complaint. (See Filing No.
23-7.) Because this court may take judicial notice of “public records,” and because
Plaintiffs allege that a foreclosure proceeding has been initiated against them, the
court will consider the state-court complaint when ruling upon CitiMortgage’s Motion
to Dismiss. See, e.g., Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005)
(stating courts may take judicial notice of judicial opinions and public records).
2

The record currently before the court is unclear regarding whether a final
judgment has been entered in the state-court foreclosure proceeding. Regardless, if
the Nebraska foreclosure action was final, this court would be barred from exercising
jurisdiction over that final state-court judgment because the Rooker-Feldman doctrine
prohibits lower federal courts from exercising appellate review of state court
judgments. Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983).
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3.

A separate judgment will be entered in accordance with this

Memorandum and Order.
DATED this 1 st day of October, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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